Husfloen v. MTA Const., Inc.
| Decision Date | 06 August 1990 |
| Docket Number | No. 24646-1-1,24646-1-1 |
| Citation | 58 Wn.App. 686,794 P.2d 859 |
| Parties | Barry L. HUSFLOEN and Gayle Husfloen, husband and wife, Appellant, v. MTA CONSTRUCTION, INC., and Howard W. Cort and Jane Doe Cort, husband and wife and the marital community composed thereof, d/b/a Bill's Plumbing, Respondents. |
| Court | Washington Court of Appeals |
Patrick H. LePley, Tobin & LePley, Bellevue, for appellant.
Preston Neimi and H. Roland Hofstedt, Merrick, Hofstedt & Lindsey, Seattle, for respondents.
Barry Husfloen appeals a summary judgment dismissal of his suit against MTA Construction, Inc. and Bill's Plumbing. Husfloen was injured on the job and argues that the defendants breached a duty to comply with safety regulations. We reverse.
Husfloen was seriously injured while operating a concrete pumping truck for Pumpcrete, an independent contracting firm which provided concrete pumping services. The truck carried a concrete pump with an extendable 90-foot boom. The boom housed a 4-inch pipe through which concrete flowed and operated like a crane: it unfolded and stretched out to pour concrete into forms on a jobsite. Husfloen maneuvered the boom and regulated the pump using a remote control device connected to the pump truck by a long electric cable. The cable allowed him to stand wherever necessary to obtain a good vantage point of the concrete being poured.
On February 18, 1987, Pumpcrete dispatched Husfloen to a residential construction site. Bill's Plumbing, a general contractor and the owner of the site, had subcontracted with MTA Construction to build a foundation; MTA had hired Pumpcrete to pump concrete into forms. Husfloen arrived in the morning and parked the pump truck in the only available place for the truck at the jobsite, a driveway. Husfloen noted overhead wires directly above his truck but was sure he could operate the machine without contacting them. After successfully pouring the concrete, Husfloen proceeded to clean the pump to remove concrete from the boom, a task which had to be done at the jobsite every time the machine was used. In order to effectively clean the concrete out of the pump tubing, he needed to run water back and forth through the boom with it vertically extended. As he extended the boom, it contacted an overhead wire--a 7200 volt power line--and energized the pump truck. This sent current through the electric cable to the remote control box and into Husfloen's body. He became instantly incapacitated and fell to the ground, still clutching the remote control box. An employee of MTA working on the project site saw Husfloen on the ground shaking violently and knocked the box out of his seized hands with a board. Husfloen suffered severe burns and was rushed to a hospital. His employer, Pumpcrete, was cited by the Department of Labor and Industries for violating a regulation that prohibits operating equipment within 10 feet of an energized power line.
Husfloen brought this suit on July 14, 1988, against MTA and Bill's Plumbing alleging that they negligently allowed or instructed him to operate the boom within 10 feet of the power line, failed to have the public utility disconnect the power, and failed to assist in folding up the pump truck. Both defendants filed motions for summary judgment which the court granted.
CR 56 authorizes entry of summary judgment only when a party is entitled to judgment as a matter of law and no material questions of fact exist which would necessitate a trial of the matter; all facts submitted and inferences must be considered in a light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Ward v. Richards & Rossano, Inc., 51 Wash.App. 423, 754 P.2d 120 (1988).
RCW 49.17.060(2) provides that employers "[s]hall comply with the rules, regulations, and orders promulgated under this chapter." Husfloen then cites WAC 296-155-040(2) arguing that this regulation imposed a duty on MTA and Bill's Plumbing to ensure compliance with safety regulations:
Every employer shall require safety devices, furnish safeguards, and shall adopt and use practices, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe. Every employer shall do every thing reasonably necessary to protect the life and safety of employees.
The Washington Supreme Court recently interpreted this statute and regulation to impose a duty upon a general contractor at a construction site to comply with safety regulations for the protection of employees of independent contractors. Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 788 P.2d 545 (1990). In Stute, an employee of a subcontractor installing a roof slipped and fell three stories. The general contractor that hired the subcontractor had provided no scaffolding or other safety equipment to break the fall. 114 Wash.2d at 456, 788 P.2d 545. The employee sued the general contractor contending that it owed him a duty to provide safety equipment at the jobsite, and specifically, that it failed to provide scaffolding or other equipment as required by WISHA regulations. Id. at 456, 459, 788 P.2d 545. The Supreme Court agreed:
A general contractor's supervisory authority is per se control over the workplace, and the duty is placed upon the general contractor as a matter of law. It is the general contractor's responsibility to furnish safety equipment or to contractually require subcontractors to furnish adequate safety equipment relevant to their responsibilities.
114 Wash.2d at 464, 788 P.2d 545. The court echoed its prior decision, Adkins v. Aluminum Co. of Am., 110 Wash.2d 128, 152-53, 750 P.2d 1257, 756 P.2d 142 (1988), in holding that RCW 49.17.060(2) imposes a duty upon an employer to protect not only the employer's own employees from recognized safety hazards, but all employees who might be injured by a failure of the employer to comply with WISHA safety...
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